As we approach the USCIS date (March 4, 2013) for accepting applications for the new unlawful presence I-601 waiver, we’ve received many questions from clients and potential clients and we are writing this post to further clarify the responses to these common questions. For a general question/answer post on the new unlawful presence waiver please see our prior posting.
Prior to applying for the new unlawful presence waiver, the individual must be the beneficiary of an immediate relative approved I-130 Petition for Alien Relative. The immediate relative category only includes:
- spouses of U.S. Citizen
- parents of U.S. Citizens who are at least 21 years of age
- unmarried children (under 21 years of age) of U.S. Citizens
Hence, an individual who is not married to a U.S. Citizen can only be petitioned for by a U.S. Citizen child who is at least 21 years of age or if the individual is unmarried and under the age of 21 then the individual can also be petitioned for by a U.S. Citizen parent.
Of note, parents of U.S. citizen children who are under the age of 21 cannot benefit based on that relationship, additionally, an individual who is either married or over the age of 21 cannot be petitioned for by a U.S. Citizen parent.
Finally, play close attention to the continued use of the phrase “U.S. Citizen.” Lawful Permanent Residents (i.e. greencard holders) cannot petition for a family member with the goal of having that individual later apply for the new unlawful presence waiver. Lawful Permanent Resident can, of course, file petitions for certain family members but those family members cannot use those petitions to file for the new unlawful presence waiver. Lawful Permanent Residents should consult with a qualified immigration attorney to determine eligibility for naturalization.
Another point requiring further clarification is the requirement that extreme hardship be to the individuals spouse or parent. Hardship to the individual’s U.S. Citizen child or children is insufficient. The reason for this distinction stems from the basis in the Immigration and Nationality Act (INA) for the new unlawful presence waiver. INA 212 (9)(B)(v) provides for the waiver of the three and ten year bar only for an individual “who is the spouse or son or daughter of a United States citizen.” Hence, as per the law, only extreme hardship to the spouse or parent is sufficient.
Note that the spouse or parent who will suffer extreme hardship need not be the petitioner of the I-130 Petition. Hence, a U.S. Citizen child who is over 21 can petition for a parent and that parent will need to show extreme hardship to someone other than the child (petitioner) in order to benefit from the new unlawful presence waiver.
Finally it is important to note that in the event that there will be hardship to the individual’s U.S. Citizen children, that hardship should still be documented in the request for the unlawful presence waiver. Your attorney can make the argument that the hardship to the children will result in extreme hardship to the qualifying relative. For example, a couple with a special needs child could argue that the absence of one parent would lead to extreme hardship for the other spouse, financially, in regards to child care, emotionally, etc.
The aforementioned discussion presents responses to some of the common questions and concerns recently raised by clients and potential clients. If you have additional questions or concerns or if you need clarification on any immigration issue we encourage you to give us a call or consult with another qualified immigration attorney. To learn more about your unlawful presence waiver options visit www.hardshipwaiverattorney.com.
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